[Federal Register Volume 59, Number 141 (Monday, July 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17937]
[[Page Unknown]]
[Federal Register: July 25, 1994]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 80
Provision of Early Intervention Services to Eligible Infants and
Toddlers With Disabilities and Their Families, and Special Education
and Related Services to Children With Disabilities Within the Section 6
School Arrangements
agency: Office of the Secretary, DoD.
action: Final rule.
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summary: Guidance is required for the Department of Defense (DoD)
Section 6 School Arrangements and the Military Services pursuant to
Section 6 of the Impact Aid Law of 1950, as amended (20 U.S.C. 241), as
amended by Pub. L. 102-119, ``Individuals with Disabilities Act (IDEA)
Amendments of 1991.'' By statute, DoD must provide all substantive
rights, protections and procedural safeguards, including due process
procedures of IDEA, in the DoD Section 6 School Arrangements. This
final rule provides guidance outlining the procedures for the provision
of early intervention services for eligible children with disabilities
ages birth to 2 (inclusive) and a free appropriate education and
related services, for children with disabilities ages 3 to 21
(inclusive) enrolled in the DoD Section 6 School Arrangements.
effective date: July 25, 1994.
for further information contact: Dr. Hector O. Nevarez, Director,
Section 6 Schools, on (703) 696-4373/4361.
SUPPLEMENTARY INFORMATION:
Background
On October 6, 1993, 58 FR 51996, the Office of the Secretary of
Defense published an interim final rule (32 CFR part 80) that
implemented the IDEA, as amended, in the Section 6 Schools and for
eligible infants and toddlers. Today's final action, except for
administrative amendments for clarity, does not differ from the interim
final rule. This final rule reflects the change of the title of the
Department of Defense organization formerly known as the Directorate
for Industrial Security Clearance Review (DISCR). This organization is
now named the Defense Office of Hearings and Appeals (DOHA).
Comments
Two comments were received from the public on the interim final
rule.
1. Comment: State reason for release of records and set a time
limit-usually six months from the date of signature that the release is
signed.
Reply: The reason for release of records will be apparent in each
case. Therefore, this recommendation has not been accepted. The final
rule requires that the student activity for which the parental consent
is being sought be specified. This necessarily involves stating the
reason for parental consent. Because the final rule further provides
that parental consent may be revoked at any time, a fixed time of
expiration for that consent is unnecessary.
2. Comment: Why can't standardized test be used as part of the
evaluation?
Reply: The final rule does not preclude the use of standardized
tests. Under Sec. 80.3(n), ``basic tests'' do not qualify as acceptable
evaluative instruments. Standardized tests, however, are not included
in the category of ``basic tests.''
Rulemaking Analyses
Executive Order 12866, ``Regulatory Planning and Review''
It has been determined that 32 CFR part 80 is not a significant
regulation action. This final rule does not:
(1) Have an annual effect of the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local or tribal governments or communities;
(2) Cause a serious inconsistency or other wise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order.
Public Law 96-354, ``Regulatory Flexibility Act''
It has been determined that this final rule is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601) because it will not have a
significant economic impact on a substantial number of small entities.
The primary financial effect of the final rule will be a reduction in
administrative costs and other burdens resulting from the
simplification and clarification of policies.
Public Law 96-511, ``Paperwork Reduction Act''
It has been determined that 32 CFR part 80 does not impose any
reporting or recordkeeping requirements under the Paperwork Reduction
Act of 1980 (44 U.S.C. 3501-3520).
This final rule is issued to provide guidance, required by statute,
with respect to (1) the implementation of the IDEA, as amended, in the
DoD Section 6 Schools and (2) the provision of early intervention
services to infants and toddlers who, but for their age, would be
entitled to enroll in such Section 6 Schools. Section 6 School
Arrangements are conducted by DoD pursuant to section 6 of Pub. L. 81-
874, as amended, 20 U.S.C. 241, and Section 505(c) of Pub. L. 97-31, 20
U.S.C. 241 note.
List of Subjects in 32 CFR Part 80
Education of individuals with disabilities, Individuals with
disabilities, Infants and children.
Accordingly, title 32, chapter I, subchapter C, is amended to
revise part 80 to read as follows:
PART 80--PROVISION OF EARLY INTERVENTION SERVICES TO ELIGIBLE
INFANTS AND TODDLERS WITH DISABILITIES AND THEIR FAMILIES, AND
SPECIAL EDUCATION CHILDREN WITH DISABILITIES WITHIN THE SECTION 6
SCHOOL ARRANGEMENTS
Sec.
80.1 Purpose.
80.2 Applicability and scope.
80.3 Definitions.
80.4 Policy.
80.5 Responsibilities.
80.6 Procedures.
Appendix A to Part 80--Procedures for the Provision of Early
Intervention Services for Infants and Toddlers With Disabilities, Ages
0-2 (Inclusive), and Their Families
Appendix B to Part 80--Procedures for Special Educational Programs
(Including Related Services) and for Preschool Children and Children
With Disabilities (3-21 Years Inclusive)
Appendix C to Part 80--Hearing Procedures
Authority: 20 U.S.C. 1400 et seq.; 20 U.S.C. 241; 20 U.S.C. 241
note.
Sec. 80.1 Purpose.
This part:
(a) Establishes policies and procedures for the provision of early
intervention services to infants and toddlers with disabilities (birth
to age 2 inclusive) and their families, and special education and
related services to children with disabilities (ages 3-21 inclusive)
entitled to receive special educational instruction or early
intervention services from the Department of Defense under Pub. L. 81-
874, sec. 6, as amended; Pub. L. 97-35, sec. 505(c); the Individuals
with Disabilities Education Act, Pub. L. 94-142, as amended; Pub. L.
102-119, sec. 23; and consistent with 32 CFR parts 285 and 310, and the
Federal Rules of Civil Procedures (28 U.S.C.).
(b) Establishes policy, assigns responsibilities, and prescribes
procedures for:
(1) Implementation of a comprehensive, multidisciplinary program of
early intervention services for infants and toddlers ages birth through
2 years (inclusive) with disabilities and their families.
(2) Provision of a free, appropriate education including special
education and related services for preschool children with disabilities
and children with disabilities enrolled in the Department of Defense
Section 6 School Arrangements.
(c) Establishes a Domestic Advisory Panel (DAP) on Early
Intervention and Education for Infants, Toddlers, Preschool Children
and Children with Disabilities, and a DoD Coordinating Committee on
Domestic Early Intervention, Special Education and Related Services.
(d) Authorizes the publication of DoD Regulations and Manuals,
consistent with DoD 5025.1-M,\1\ and DoD forms consistent with DoD
5000.12-M\2\ and DoD Directive 8910.1\3\ to implement this part.
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\1\Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
\2\See footnote 1 to Sec. 80.1(c).
\3\See footnote 1 to Sec. 80.1(c).
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Sec. 80.2 Applicability and scope.
This part:
(a) Applies to the Office of the Secretary of Defense, the Military
Departments, the Chairman of the Joint Chiefs of Staff and the Joint
Staff, the Unified and Specified Commands, the Inspector General of the
Department of Defense, the Defense Agencies, and the DoD Field Agencies
(hereafter referred to collectively as ``the DoD Components'').
(b) Encompasses infants, toddlers, preschool children, and children
receiving or entitled to receive early intervention services or special
educational instruction from the DoD on installations with Section 6
School Arrangements, and the parents of those individuals with
disabilities.
(c) Applies only to schools operated by the Department of Defense
within the Continental United States, Alaska, Hawaii, Puerto Rico, Wake
Island, Guam, American Samoa, the Northern Mariana Islands, and the
Virgin Islands.
Sec. 80.3 Definitions.
(a) Assistive technology device. Any item, piece of equipment, or
product system, whether acquired commercially or off the shelf,
modified, or customized, that is used to increase, maintain, or improve
functional capabilities of individuals with disabilities.
(b) Assistive technology service. Any service that directly assists
an individual with a disability in the selection, acquisition, or use
of an assistive technology device. This term includes:
(1) Evaluating the needs of an individual with a disability,
including a functional evaluation of the individual in the individual's
customary environment.
(2) Purchasing, leasing, or otherwise providing for the acquisition
of assistive technology devices by individuals with disabilities.
(3) Selecting designing, fitting, customizing, adapting, applying,
maintaining, repairing, or replacing of assistive technology devices.
(4) Coordinating and using other therapies, interventions, or
services with assistive technology devices, such as those associated
with existing educational and rehabilitative plans and programs.
(5) Training or technical assistance for an individual with
disabilities, or, where appropriate, the family of an individual with
disabilities.
(6) Training or technical assistance for professionals (including
individuals providing educational rehabilitative services), employers,
or other individuals who provide services to, employ, or are otherwise
substantially involved in the major life functions of an individual
with a disability.
(c) Attention deficit disorder (ADD). As used to define students,
encompasses attention-deficit hyperactivity disorder and attention
deficit disorder without hyperactivity. The essential features of this
disorder are developmentally inappropriate degrees of inattention,
impulsiveness, and hyperactivity.
(1) A diagnosis of ADD may be made only after the child is
evaluated by appropriate medical personnel, and evaluation procedures
set forth in this part (appendix B to this part) are followed.
(2) A diagnosis of ADD, in and of itself, does not mean that a
child requires special education; it is possible that a child diagnosed
with ADD, as the only finding, can have his or her educational needs
met within the regular education setting.
(3) For a child with ADD to be eligible for special education, the
Case Study Committee, with assistance from the medical personnel
conducting the evaluation, must then make a determination that the ADD
is a chronic or acute health problem that results in limited alertness,
which adversely affects educational performance. Children with ADD who
are eligible for special education and medically related services will
qualify for services under ``Other Health Impaired'' as described in
Criterion A, paragraph (h)(1) of this section.
(d) Autism. A developmental disability significantly affecting
verbal and non-verbal communication and social interaction generally
evident before age 3 that adversely affects educational performance.
Characteristics of autism include irregularities and impairments in
communication, engagement in repetitive activities and stereotyped
movements, resistance to environmental change or change in daily
routines, and unusual responses to sensory experiences. The term does
not include children with characteristics of the disability of serious
emotional disturbance.
(e) Case Study Committee (CSC). A school-based committee that
determines a child's eligibility for special education, develops and
reviews a child's individualized education program (IEP), and
determines appropriate placement in the least restrictive environment.
A CSC is uniquely composed for each child. Participants on a CSC must
include:
(1) The designated representative of the Section 6 School
Arrangement, who is qualified to supervise the provision of special
education. Such representative may not be the child's special education
teacher.
(2) One, or more, of the child's regular education teachers, if
appropriate.
(3) A special education teacher.
(4) One, or both, of the child's parents.
(5) The child, if appropriate.
(6) A member of the evaluation team or another person knowledgeable
about the evaluation procedures used with the child.
(7) Other individuals, at the discretion of the parent or the
Section 6 School Arrangement, who may have pertinent information.
(f) Child-find. The ongoing process used by the Military Services
and a Section 6 School Arrangement to seek and identify children (from
birth to 21 years of age) who show indications that they might be in
need of early intervention services or special education and related
services. Child-find activities include the dissemination of
information to the public and identification, screening, and referral
procedures.
(g) Children with disabilities ages 5-21 (inclusive). Those
children ages 5-21 years (inclusive), evaluated in accordance with this
part, who are in need of special education as determined by a CSC and
who have not been graduated from a high school or who have not
completed the requirements for a General Education Diploma. The terms
``child'' and ``student'' may also be used to refer to this population.
The student must be determined eligible under one of the following four
categories:
(1) Criterion A. The educational performance of the student is
adversely affected, as determined by the CSC, by a physical impairment;
visual impairment including blindness; hearing impairment including
deafness; orthopedic impairment; or other health impairment, including
ADD, when the condition is a chronic or acute health problem that
results in limited alertness; autism; and traumatic brain injury
requiring environmental and/or academic modifications.
(2) Criterion B. A student who manifests a psychoemotional
condition that is the primary cause of educational difficulties; a
student who exhibits maladaptive behavior to a marked degree and over a
long period of time that interferes with skill attainment, classroom
functioning or performance, social-emotional condition, and who as a
result requires special education. The term does not usually include a
student whose difficulties are primarily the result of:
(i) Intellectual deficit;
(ii) Sensory or physical impairment;
(iii) Attention deficit hyperactivity disorder;
(iv) Antisocial behavior;
(v) Parent-child or family problems;
(vi) Disruptive behavior disorders;
(vii) Adjustment disorders;
(viii) Interpersonal or life circumstance problems; or
(ix) Other problems that are not the result of a severe emotional
disorder.
(3) Criterion C. The educational performance of the student is
adversely affected, as determined by the CSC, by a speech and/or
language impairment.
(4) Criterion D. The measured academic achievement of the student
in math, reading, or language is determined by the CSC to be adversely
affected by underlying disabilities (including mental retardation and
specific learning disability) including either an intellectual deficit
or an information processing deficit.
(5) Criterion E. A child, 0-5 inclusive, whose functioning level as
determined by the CSC, is developmentally delayed and would qualify for
special education and related services as determined by this
regulation.
(h) Consent. This term means that:
(1) The parent of an infant, toddler, child, or preschool child
with a disability has been fully informed, in his or her native
language, or in another mode of communication, of all information
relevant to the activity for which permission is sought.
(2) The parent understands and agrees in writing to the
implementation of the activity for which his or her permission is
sought. The writing must describe that activity, list the child's
records that will be released and to whom, and acknowledge that the
parent understands consent is voluntary and may be prospectively
revoked at any time.
(3) The parent of an infant, toddler, preschool child or child must
consent to the release of records. The request for permission must
describe that activity, list each individual's records that will be
released and to whom, and acknowledge that the parent understands that
consent is voluntary and may be prospectively revoked at any time.
(4) The written consent of a parent of an infant or toddler with a
disability is necessary for implementation of early intervention
services described in the individualized family service plan (IFSP). If
such parent does not provide consent with respect to a particular early
intervention service, then the early intervention services for which
consent is obtained shall be provided.
(i) Deaf. A hearing loss or deficit so severe that the child is
impaired in processing linguistic information through hearing, with or
without amplification, to the extent that his or her educational
performance is adversely affected.
(j) Deaf-blind. Concomitant hearing and visual impairments, the
combination of which causes such severe communication and other
developmental and educational problems that they cannot be accommodated
in special education programs solely for children with deafness or
children with blindness.
(k) Developmental delay. A significant discrepancy in the actual
functioning of an infant or toddler when compared with the functioning
of a nondisabled infant or toddler of the same chronological age in any
of the following areas of development: Physical development, cognitive
development, communication development, social or emotional
development, and adaptive development as measured using standardized
evaluation instruments and confirmed by clinical observation and
judgment. A significant discrepancy exists when the one area of
development is delayed by 25 percent or 2 standard deviations or more
below the mean or when two areas of development are each delayed by 20
percent or 1\1/2\ standard deviations or more below the mean.
(Chronological age should be corrected for prematurity until 24 months
of age.)
(l) Early intervention service coordination services. Case
management services that include integration and oversight of the
scheduling and accomplishment of evaluation and delivery of early
intervention services to an infant or toddler with a disability and his
or her family.
(m) Early intervention services. Developmental services that:
(1) Are provided under the supervision of a military medical
department.
(2) Are provided using Military Health Service System and community
resources.
(i) Evaluation IFSP development and revision, and service
coordination services are provided at no cost to the infant's or
toddler's parents.
(ii) Incidental fees (e.g., child care fees) that are normally
charged to infants, toddlers, and children without disabilities or
their parents may be charged.
(3) Are designed to meet the developmental needs of an infant or
toddler with a disability in any one or more of the following areas:
Physical development, cognitive development, communication development,
social or emotional development, or adaptive development.
(4) Meet the standards developed by the Assistant Secretary of
Defense for Health Affairs (ASD(HA)).
(5) Include the following services: Family training, counseling,
and home visits; special instruction; speech pathology and audiology;
occupational therapy; physical therapy; psychological services; early
intervention program coordination services; medical services only for
diagnostic or evaluation purposes; early identification, screening, and
assessment services; vision services; and social work services. Also
included are assistive technology devices and assistive technology
services; health services necessary to enable the infant or toddler to
benefit from the above early intervention services; and transportation
and related costs that are necessary to enable an infant or toddler and
the infant's or toddler's family to receive early intervention
services.
(6) Are provided by qualified personnel, including: Special
educators; speech and language pathologists and audiologists;
occupational therapists; physical therapists; psychologists; social
workers; nurses' nutritionists; family therapists; orientation and
mobility specialists; and pediatricians and other physicians.
(7) To the maximum extent appropriate, are provided in natural
environments, including the home and community settings in which
infants and toddlers without disabilities participate.
(8) Are provided in conformity with an IFSP.
(n) Evaluation. Procedures used to determine whether an individual
(birth through 21 inclusive) has a disability under this part and the
nature and extent of the early intervention services and special
education and related services that the individual needs. These
procedures must be used selectively with an individual and may not
include basic tests administered to, or used with, all infants,
toddlers, preschool children or children in a school, grade, class,
program, or other grouping.
(o) Family training, counseling, and home visits. Services
provided, as appropriate, by social workers, psychologists, and other
qualified personnel to assist the family of an infant or toddler
eligible for early intervention services in understanding the special
needs of the child and enhancing the infant or toddler's development.
(p) Free appropriate public education. Special education and
related services for children ages 3-21 years (inclusive) that:
(1) Are provided at no cost (except as provided in paragraph
(xx)(1) of this section, to parents or child with a disability and are
under the general supervision and direction of a Section 6 School
Arrangement.
(2) Are provided at an appropriate preschool, elementary, or
secondary school.
(3) Are provided in conformity with an Individualized Education
Program.
(4) Meet the requirements of this part.
(q) Frequency and intensity. The number of days or sessions that a
service will be provided, the length of time that the service is
provided during each session, whether the service is provided during
each session, and whether the service is provided on an individual or
group basis.
(r) Health services. Services necessary to enable an infant or
toddler, to benefit from the other early intervention services under
this part during the time that the infant or toddler is receiving the
other early intervention services. The term includes:
(1) Such services as clean intermittent catheterization,
tracheostomy care, tube feeding, the changing of dressings or osteotomy
collection bags, and other health services.
(2) Consultation by physicians with other service providers on the
special health care needs of infants and toddlers with disabilities
that will need to be addressed in the course of providing other early
intervention services.
(3) The term does not include the following:
(i) Services that are surgical in nature or purely medical in
nature.
(ii) Devices necessary to control or treat a medical condition.
(iii) Medical or health services that are routinely recommended for
all infants or toddlers.
(s) Hearing impairment. A hearing loss, whether permanent or
fluctuating, that adversely affects an infant's, toddler's, preschool
child's, or child's educational performance.
(t) High probability for developmental delay. An infant or toddler
with a medical condition that places him or her at substantial risk of
evidencing a developmental delay before the age of 5 years without the
benefit of early intervention services.
(u) Include; such as. Not all the possible items are covered,
whether like or unlike the ones named.
(v) Independent evaluation. An evaluation conducted by a qualified
examiner who is not employed by the DoD Section 6 Schools.
(w) Individualized education program (IEP). A written statement for
a preschool child or child with a disability (ages 3-21 years
inclusive) developed and implemented in accordance with this part
(appendix B to this part).
(x) Individualized family service plan (IFSP). A written statement
for an infant or toddler with a disability and his or her family that
is based on a multidisciplinary assessment of the unique needs of the
infant or toddler and concerns and the priorities of the family, and an
identification of the services appropriate to meet such needs,
concerns, and priorities.
(y) Individuals with disabilities. Infants and toddlers with
disabilities, preschool children with disabilities, and children with
disabilities, collectively, ages birth to 21 years (inclusive) who are
either entitled to enroll in a Section 6 School Arrangement or would,
but for their age, be so entitled.
(z) Infants and toddlers with disabilities. Individuals from birth
to age 2 years (inclusive), who need early intervention services
because they:
(1) Are experiencing a developmental delay, as measured by
appropriate diagnostic instruments and procedures, of 25 percent (or 2
standard deviations below the mean), in one or more areas, or 20
percent (or 1\1/2\ standard deviations below the mean), in two or more
of the following areas of development: Cognitive, physical,
communication, social or emotional, or adaptive development.
(2) Are at-risk for a developmental delay; i.e., have a diagnosed
physical or mental condition that has a high probability of resulting
in developmental delay; e.g., chromosomal disorders and genetic
syndromes.
(aa) Intercomponent. Cooperation among the DoD Components and
programs so that coordination and integration of services to
individuals with disabilities and their families occur.
(bb) Medically related services. (1) Medical services (as defined
in paragraph (cc) of this section) and those services provided under
professional medical supervision that are required by a CSC either to
determine a student's eligibility for special education or, if the
student is eligible, the special education and related services
required by the student under this part in accordance with 32 CFR part
345.
(2) Provision of either direct or indirect services listed on an
IEP as necessary for the student to benefit from the educational
curriculum. These services may include: Medical; social work; community
health nursing; dietary; psychiatric diagnosis; evaluation, and follow
up; occupational therapy; physical therapy; audiology; ophthalmology;
and psychological testing and therapy.
(cc) Medical services. Those evaluative, diagnostic, and
supervisory services provided by a licensed and credentialed physician
to assist CSCs and to implement IEPs. Medical services include
diagnosis, evaluation, and medical supervision of related services that
by statute, regulation, or professional tradition are the
responsibility of a licensed and credentialed physician.
(dd) Mental retardation. Significantly subaverage general
intellectual functioning, existing concurrently with deficits in
adaptive behavior and manifested during the developmental period, that
adversely affects a preschool child's or child's educational
performance.
(ee) Multidisciplinary. The involvement of two or more disciplines
or professions in the provision of integrated and coordinated services,
including evaluation and assessment activities, and development of an
IFSP or IEP.
(ff) Native language. When used with reference to an individual of
limited English proficiency, the language normally used by such
individuals, or in the case of an infant, toddler, preschool child or
child, the language normally used by the parent of the infant, toddler,
preschool child or child.
(gg) Natural environments. Settings that are natural or normal for
the infant or toddler's same age peers who have no disability.
(hh) Non-section 6 school arrangement or facility. A public or
private school or other institution not operated in accordance with 32
CFR part 345. This term includes Section 6 special contractual
arrangements.
(ii) Nutrition services. These services include:
(1) Conducting individual assessments in nutritional history and
dietary intake; anthropometric, biochemical and clinical variables;
feeding skills and feeding problems; and food habits and food
preferences.
(2) Developing and monitoring appropriate plans to address the
nutritional needs of infants and toddlers eligible for early
intervention services.
(3) Making referrals to appropriate community resources to carry
out nutrition goals.
(jj) Orthopedic impairment. A severe physical impairment that
adversely affects a child's educational performance. The term includes
congenital impairments (such as club foot and absence of some member),
impairments caused by disease (such as poliomyelitis and bone
tuberculosis), and impairments from other causes such as cerebral
palsy, amputations, and fractures or burns causing contracture.
(kk) Other health impairment. Having an autistic condition that is
manifested by severe communication and other developmental and
educational problems; or having limited strength, vitality, or
alertness due to chronic or acute health problems that adversely affect
a child's educational performance as determined by the CSC, such as:
ADD, heart condition, tuberculosis, rheumatic fever, nephritis, asthma,
sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, and
diabetes.
(ll) Parent. The biological father or mother of a child; a person
who, by order of a court of competent jurisdiction, has been declared
the father or mother of a child by adoption; the legal guardian of a
child; or a person in whose household a child resides, provided that
such person stands in loco parentis to that child and contributes at
least one-half of the child's support.
(mm) Personally identifiable information. Information that includes
the name of the infant, toddler, preschool child, child, parent or
other family member; the home address of the infant, toddler, preschool
child, child, parent or other family member; another personal
identifier, such as the infant's, toddler's, preschool child's,
child's, parent's or other family member's social security number; or a
list of personal characteristics or other information that would make
it possible to identify the infant, toddler, preschool child, child,
parent, or other family member with reasonable certainty.
(nn) Preschool children with disabilities. These are students, ages
3-5 years (inclusive), who need special education services because
they:
(1) Are experiencing developmental delays, as measured by
appropriate diagnostic instruments and procedures in one or more of the
following areas: Cognitive development, physical development,
communication development, social or emotional development, and
adaptive development; and
(2) Who, by reason thereof, need special education and related
services.
(oo) Primary referral source. The DoD Components, including child
care centers, pediatric clinics, and parents that suspect an infant,
toddler, preschool child or child has a disability and bring that
infant, toddler, preschool child or child to the attention of the Early
Intervention Program or school CSC.
(pp) Public awareness program. Activities focusing on early
identification of infants and toddlers with disabilities, including the
preparation and dissemination by the military medical department to all
primary referral sources of information materials for parents on the
availability of early intervention services. Also includes procedures
for determining the extent to which primary referral sources within the
Department of Defense, especially within DoD medical treatment
facilities, and physicians disseminate information on the availability
of early intervention services to parents of infants or toddlers with
disabilities.
(qq) Qualified. With respect to instructional personnel, a person
who holds at a minimum a current and applicable teaching certificate
from any of the 50 States, Puerto Rico, or the District of Columbia, or
has met other pertinent requirements in the areas in which he or she is
providing special education or related services not of a medical nature
to children with disabilities. Providers of early intervention services
and medically related services must meet standards established by the
ASD(HA).
(rr) Related services. This includes transportation, and such
developmental, corrective, and other supportive services (including
speech pathology and audiology; psychological services; physical and
occupational therapy; recreation, including therapeutic recreation and
social work services; and medical and counseling services), including
rehabilitation counseling (except that such medical services shall be
for diagnostic and evaluative purposes only) as may be required to
assist a child with a disability to benefit from special education, and
includes the early identification and assessment of disabling
conditions in preschool children or children. The following list of
related services is not exhaustive and may include other developmental,
corrective, or supportive services (such as clean intermittent
catheterization), if they are required to assist a child with a
disability to benefit from special education, as determined by a CSC.
(1) Audiology. This term includes:
(i) Audiological, diagnostic, and prescriptive services provided by
audiologists who have a Certificate of Clinical Competence--Audiology
(CCC-A) and pediatric experience. Audiology shall not include speech
therapy.
(ii) Identification of children with hearing loss.
(iii) Determination of the range, nature, and degree of hearing
loss, including referral for medical or other professional attention
designed to ameliorate or correct that loss.
(iv) Provision of ameliorative and corrective activities, including
language and auditory training, speech-reading (lip-reading), hearing
evaluation, speech conservation, the recommendation of amplification
devices, and other aural rehabilitation services.
(v) Counseling and guidance of children, parents, and service
providers regarding hearing loss.
(vi) Determination of the child's need for group and individual
amplification, selecting and fitting an appropriate aid, and evaluating
the effectiveness of amplification.
(2) Counseling services. Services provided by qualified social
workers, psychologists, guidance counselors, or other qualified
personnel to help a preschool child or child with a disability to
benefit from special education.
(3) Early identification. The implementation of a formal plan for
identifying a disability as early as possible in the individual's life.
(4) Medical services. Those evaluative, diagnostic, and supervisory
services provided by a licensed and credentialed physician to assist
CSCs in determining whether a child has a medically related disability
condition that results in the child's need for special education and
related services and to implement IEPs. Medical services include
diagnosis, evaluation, and medical supervision of related services
that, by statute, regulation, or professional tradition, are the
responsibility of a licensed and credentialed physician.
(5) Occupational therapy. Therapy that provides developmental
evaluations and treatment programs using selected tasks to restore,
reinforce, or enhance functional performance. It addresses the quality
and level of functions in areas such as behavior, motor coordination,
spatial orientation; visual motor and sensory integration; and general
activities of daily living. This therapy, which is conducted or
supervised by a qualified occupational therapist, provides training and
guidance in using special equipment to improve the patient's
functioning in skills of daily living, work, and study.
(6) Parent counseling and training. Assisting parents in
understanding the special needs of their preschool child or child and
providing parents with information about child development and special
education.
(7) Physical therapy. Therapy that provides evaluations and
treatment programs using exercise, modalities, and adaptive equipment
to restore, reinforce, or enhance motor performance. It focuses on the
quality of movement, reflex development, range of motion, muscle
strength, gait, and gross motor development, seeking to decrease
abnormal movement and posture while facilitating normal movement and
equilibrium reactions. The therapy, which is conducted by a qualified
physical therapist, provides for measurement and training in the use of
adaptive equipment and prosthetic and orthotic appliances. Therapy may
be conducted by a qualified physical therapist assistant under the
clinical supervision of a qualified physical therapist.
(8) Psychological services. Services listed in paragraphs (rr) (8)
(i) through (rr) (8) (iv) of this section that are provided by a
qualified psychologist:
(i) Administering psychological and educational tests and other
assessment procedures.
(ii) Interpreting test and assessment results.
(iii) Obtaining, integrating, and interpreting information about a
preschool child's or child's behavior and conditions relating to his or
her learning.
(iv) Consulting with other staff members in planning school
programs to meet the special needs of preschool children and children,
as indicated by psychological tests, interviews, and behavioral
evaluations.
(v) Planning and managing a program of psychological services,
including psychological counseling for preschool children, children,
and parents. For the purpose of these activities, a qualified
psychologist is a psychologist licensed in a State of the United States
who has a degree in clinical or school psychology and additional
pediatric training and/or experience.
(9) Recreation. This term includes:
(i) Assessment of leisure activities.
(ii) Therapeutic recreational activities.
(iii) Recreational programs in schools and community agencies.
(iv) Leisure education.
(10) School health services. Services provided, pursuant to an IEP,
by a qualified school health nurse, or other qualified person, that are
required for a preschool child or child with a disability to benefit
from special education.
(11) Social work counseling services in schools. This term
includes:
(i) Preparing a social and developmental history on a preschool
child or child identified as having a disability.
(ii) Counseling the preschool child or child with a disability and
his or her family on a group or individual basis, pursuant to an IEP.
(iii) Working with problems in a preschool child's or child's
living situation (home, school, and community) that adversely affect
his or her adjustment in school.
(iv) Using school and community resources to enable the preschool
child or child to receive maximum benefit from his or her educational
program.
(12) Speech pathology. This term includes the:
(i) Identification of preschool children and children with speech
or language disorders.
(ii) Diagnosis and appraisal of specific speech or language
disorders.
(iii) Referral for medical or other professional attention to
correct or ameliorate speech or language disorders.
(iv) Provision of speech and language services for the correction,
amelioration, and prevention of communicative disorders.
(v) Counseling and guidance of preschool children, children,
parents, and teachers regarding speech and language disorders.
(13) Transportation. This term includes transporting the individual
with a disability and, when necessary, an attendant or family member or
reimbursing the cost of travel ((e.g., mileage, or travel by taxi,
common carrier or other means) and related costs (e.g., tolls and
parking expenses)) when such travel is necessary to enable a preschool
child or child to receive special education (including related
services) or an infant or toddler and the infant's or toddler's family
to receive early intervention services. Transportation services
include:
(i) Travel to and from school and between schools, including travel
necessary to permit participation in educational and recreational
activities and related services.
(ii) Travel from school to a medically related service site and
return.
(iii) Travel in and around school buildings.
(iv) Travel to and from early intervention services.
(v) Specialized equipment (including special or adapted buses,
lifts, and ramps) if required to provide special transportation for an
individual with a disability.
(vi) If necessary, attendants assigned to vehicles transporting an
individual with a disability when that individual requires assistance
to be safely transported.
(ss) Section 6 School Arrangement. The schools (pre-kindergarten
through grade 12) operated by the Department of Defense within the
CONUS, Alaska, Hawaii, Puerto Rico, Wake Island, Guam, American Samoa,
the Northern Mariana Islands, and the Virgin Islands. Section 6 School
Arrangements are operated under DoD Directive 1342.21.\4\
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\4\See footnote 1 to Sec. 80.1(c).
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(tt) Separate facility. A school or a portion of a school,
regardless of whether it is used by the Section 6 School Arrangement,
that is only attended by children with disabilities.
(uu) Serious emotional disturbance. The term includes:
(1) A condition that has been confirmed by clinical evaluation and
diagnosis and that, over a long period of time and to a marked degree,
adversely affects educational performance and that exhibits one or more
of the following characteristics:
(i) An inability to learn that cannot be explained by intellectual,
sensory, or health factors.
(ii) An inability to build or maintain satisfactory interpersonal
relationships with peers and teachers.
(iii) Inappropriate types of behavior under normal circumstances.
(iv) A tendency to develop physical symptoms or fears associated
with personal or school problems.
(v) A general, pervasive mood of unhappiness or depression.
(2) Schizophrenia, but does not include children who are socially
maladjusted, unless it is determined that they are otherwise seriously
emotionally disturbed.
(vv) Service provider. Any individual who provides services listed
in an IEP or an IFSP.
(ww) Social work services. This term includes:
(1) Preparing a social or developmental history on an infant,
toddler, preschool child or child with a disability.
(2) Counseling with the infant, toddler, preschool child or child
and family in a group or individual capacity.
(3) Working with individuals with disabilities (0-21 inclusive) in
the home school, and/or community environment to ameliorate those
conditions that adversely affect development or educational
performance.
(4) Using school and community resources to enable the child to
receive maximum benefit from his or her educational program or for the
infant, toddler, and family to receive maximum benefit from early
intervention services.
(xx) Special education. Specially designed instruction, at no cost
to the parent, to meet the unique needs of a preschool child or child
with a disability, including instruction conducted in the classroom, in
the home, in hospitals and institutions, and in other settings, and
instruction in physical education. The term includes speech pathology
or any other related service, if the service consists of specially
designed instruction, at no cost to the parents, to meet the unique
needs of a preschool child or child with a disability, and is
considered ``special education'' rather than a ``related service.'' The
term also includes vocational education if it consists of specially
designed instruction, at no cost to the parents, to meet the unique
needs of a child with a disability.
(1) At no cost. With regard to a preschool child or child eligible
to attend Section 6 School Arrangements, specially designed instruction
and related services are provided without charge, but incidental fees
that are normally charged to nondisabled students, or their parents, as
a part of the regular educational program may be imposed.
(2) Physical education. The development of:
(1) Physical and motor fitness.
(ii) Fundamental motor skills and patterns.
(iii) Skills in aquatics, dance, and individual and group games and
sports (including intramural and lifetime sports).
(iv) A program that includes special physical education, adapted
physical education, movement education, and motor development.
(3) Vocational education. This term means organized educational
programs that are directly related to the preparation of individuals
for paid or unpaid employment, or for additional preparation for a
career requiring other than a baccalaureate or advanced degree.
(yy) Special instruction. This term includes:
(1) Designing learning environments and activities that promote the
infant's, toddler's, preschool child's or child's acquisition of skills
in a variety of developmental areas, including cognitive processes and
social interaction.
(2) Planning curriculum, including the planned interaction of
personnel, materials, and time and space, that leads to achieving the
outcomes in the infant's, toddler's, preschool child's or child's IEP
or IFSP.
(3) Providing families with information, skills, and support
related to enhancing the skill development of the infant, toddler, or
preschool child or child.
(4) Working with the infant, toddler, preschool child, or child to
enhance the infant's, toddler's, preschool child's or child's
development and cognitive processes.
(zz) Specific learning disability. A disorder in one or more of the
basic psychological processes involved in understanding or in using
spoken or written language that may manifest itself as an imperfect
ability to listen, think, speak, read, write, spell, or do mathematical
calculations. The term includes such conditions as perceptual
disabilities, brain injury, minimal brain dysfunction, dyslexia, and
developmental aphasia. The term does not include preschool children or
children who have learning problems that are primarily the result of
visual, hearing, or motor disabilities, mental retardation, emotional
disturbance, or environmental, cultural, or economic differences.
(aaa) Speech and language impairments. A communication disorder,
such as stuttering, impaired articulation, voice impairment, or a
disorder in the receptive or expressive areas of language that
adversely affects a preschool child's or child's educational
performance.
(bbb) Superintendent. The chief official of a Section 6 School
Arrangement responsible for the implementation of this part on his or
her installation.
(ccc) Transition services. A coordinated set of activities for a
toddler that may be required to promote movement from early
intervention, preschool, and other educational programs into different
programs or educational settings. For a student 14 years of age and
older, transition services are designed within an outcome-oriented
process, which promotes movement from school to post-school activities,
including post-secondary education, vocational training, integrated
employment (including supported employment), continuing and adult
education, adult services, independent living, or community
participation. The coordinated set of activities shall be based upon
the individual student's needs, taking into account the student's
preferences and interests, and shall include instruction, community
experiences, the development of employment and other post-school adult
living objectives, and when appropriate, acquisition of daily living
skills and functional vocational evaluation.
(ddd) Traumatic brain injury. An injury to the brain caused by an
external physical force or by an internal occurrence, such as stroke or
aneurysm, resulting in total or partial functional disability or
psychosocial maladjustment that adversely affects educational
performance. The term includes open or closed head injuries resulting
in mild, moderate, or severe impairments in one or more areas,
including cognition; language, memory; attention; reasoning; abstract
thinking; judgment; problem solving; sensory; perceptual and motor
abilities; psychosocial behavior; physical function; and information
processing and speech. The term does not include brain injuries that
are congenital or degenerative or brain injuries that are induced by
birth trauma.
(eee) Vision services. Services necessary to ameliorate the effects
of sensory impairment resulting from a loss of vision.
(fff) Visual impairment. A sensory impairment including blindness
that, even with correction, adversely affects a preschool child's or
child's educational performance. The term includes both partially
seeing and blind preschool children and children.
Sec. 80.4 Policy.
It is DoD policy that:
(a) All individuals with disabilities ages 3 to 21 years receiving
or entitled to receive educational instruction from the Section 6
School Arrangements shall be provided a free, appropriate education
under this part in accordance with the IDEA as amended, 20 U.S.C.
Chapter 33; Pub. L. 102-119, Section 23; and DoD Directive 1342.21.
(b) All individuals with disabilities ages birth through 2 years
(inclusive) and their families are entitled to receive early
intervention services under this part, provided that such infants and
toddlers would be eligible to enroll in a Section 6 School Arrangement
but for their age.
Sec. 80.5 Responsibilities.
(a) The Under Secretary of Defense for Personnel and Readiness
(USD(P&R)) shall:
(1) Ensure that all infants and toddlers with disabilities (birth
through 2 years inclusive) who but for their age would be eligible to
attend the Section 6 Arrangement Schools, and their families are
provided early intervention services in accordance with IDEA as
amended, (20 U.S.C., Chapter 33, Subchapter VIII.) and in conformity
with the procedures in appendix A to this part.
(2) Ensure that preschool children and children with disabilities
ages 3-21 years (inclusive) receiving educational instruction from
Section 6 School Arrangements are provided a free appropriate public
education and that the educational needs of such preschool children and
children with disabilities are met using the procedures established by
this part.
(3) Ensure that educational facilities and services provided by
Section 6 School Arrangements for preschool children and children with
disabilities are comparable to educational facilities and services for
non-disabled students.
(4) Maintain records on special education and related services
provided to children with disabilities, consistent with 32 CFR part
310.
(5) Ensure the provision of all necessary diagnostic services and
special education and related services listed on an IEP (including
those supplied by or under the supervision of physicians) to preschool
children and children with disabilities who are enrolled in Section 6
School Arrangements. In fulfilling this responsibility, (USD(P&R)), or
designee, may use intercomponent arrangements, or act through contracts
with private parties, when funds are authorized and appropriated.
(6) Develop and implement a comprehensive system of personnel
development, in accordance with 20 U.S.C. 1413-(a)(3), for all
professional staff employed by a Section 6 School Arrangement. This
system shall include:
(i) Inservice training of general and special educational
instructional and support personnel,
(ii) Implementing innovative strategies and activities for the
recruitment and retention of medically related service providers,
(iii) Detailed procedures to assure that all personnel necessary to
carry out the purposes of this part are appropriately and adequately
prepared and trained, and
(iv) Effective procedures for acquiring and disseminating to
teachers and administrators of programs for children with disabilities
significant information derived from educational research,
demonstration, and similar projects, and
(v) Adopting, where appropriate, promising practices, materials,
and technology.
(7) Provide technical assistance to professionals in Section 6
School Arrangements involved in, or responsible for, the education of
preschool children or children with disabilities.
(8) Ensure that child-find activities are coordinated with other
relevant components and are conducted to locate and identify every
individual with disabilities.
(9) Issue guidance implementing this part.
(10) Undertake evaluation activities to ensure compliance with this
part through monitoring, technical assistance, and program evaluation.
(11) Chair the DoD Coordinating Committee on Domestic Early
Intervention, Special Education, and Related Services, which shall be
composed of representatives of the Secretaries of the Military
Departments, the Assistant Secretary of Defense for Health Affairs
(ASD(HA)), the General Counsel of the Department of Defense (GC, DoD),
and the Director, Section 6 Schools.
(12) Through the DoD Coordinating Committee on Demestic Early
Intervention, Special Education, and Related Services, monitor the
provision of special education and related services and early
intervention services furnished under this part, and ensure that
related services, special education, and early intervention services
are properly coordinated.
(13) Ensure that appropriate personnel are trained to provide
mediation services in cases that otherwise might result in due process
proceedings under this part.
(14) Ensure that transition services from early intervention
services to regular or special education and from special education to
the world of work are provided.
(15) Ensure that all DoD programs that provide services to infants
and toddlers and their families (e.g., child care, medical care,
recreation) are involved in a comprehensive intercomponent system for
early intervention services.
(16) Ensure, whenever practicable, that planned construction not
yet past the 35 percent design phase and new design begun after the
date of this part of renovation of school or child care facilities
includes consideration of the space required for the provision of
medically related services and early intervention services.
(17) Shall establish the Domestic Advisory Panel that shall:
(i) Consist of members appointed by the USD (P&R) or Principal
Deputy USD (P&R). Membership shall include at least one representative
from each of the following groups:
(A) Individuals with disabilities.
(B) Parents, including minority parents of individuals with
disabilities from various age groups.
(C) Section 6 School Arrangements special education teachers.
(D) Section 6 School Arrangements regular education teachers.
(E) Section 6 School Arrangements Superintendent office personnel.
(F) The Office of Director, Section 6 Schools.
(G) The Surgeons General of the Military Departments.
(H) The Family Support Programs of the Military Departments.
(I) Section 6 School Arrangements School Boards.
(J) Early Intervention service providers on installations with
Section 6 School Arrangements.
(K) Other appropriate personnel.
(ii) Meet as often as necessary.
(iii) Perform the following duties:
(A) Review information and provide advice to ASD (P&R) regarding
improvements in services provided to individuals with disabilities in
Section 6 Schools and early intervention programs.
(B) Receive and consider the views of various parent, student, and
professional groups, and individuals with disabilities.
(C) When necessary, establish committees for short-term purposes
composed of representatives from parent, student, family and other
professional groups, and individuals with disabilities.
(D) Review the findings of fact and decision of each impartial due
process hearing conducted pursuant to this part.
(E) Assist in developing and reporting such information and
evaluations as may aid Section 6 Schools and the Military Departments
in the performance of duties under the part.
(F) Make recommendations, based on program and operational
information, for changes in the budget, organization, and general
management of the special education program, and in policy and
procedure.
(G) Comment publicly on rules or standards regarding the education
of individuals with disabilities.
(H) Assist in developing recommendations regarding the transition
of toddlers with disabilities to preschool services.
(b) The Assistant Secretary of Defense for Health Affairs in
consultation with the USD(P&R), the GC, DoD, and the Secretaries of the
Military Departments, shall:
(1) Establish staffing and personnel standards for personnel who
provide early intervention services and medically related services.
(2) Develop and implement a comprehensive system of personnel
development in accordance with 20 U.S.C. 1413(a)(3), including the
training of professionals, paraprofessionals and primary referral
sources, regarding the basic components of early intervention services
and medically related services. Such a system may include:
(i) Implementing innovative strategies and activities for the
recruitment and retention of early intervention service providers.
(ii) Ensuring that early intervention service providers and
medically related service providers are fully and appropriately
qualified to provide early intervention services and medically related
services, respectively.
(iii) Training personnel to work in the military environment.
(iv) Training personnel to coordinate transition services for
infants and toddlers with disabilities from an early intervention
program to a preschool program.
(3) Develop and implement a system for compiling data on the
numbers of infants and toddlers with disabilities and their families in
need of appropriate early intervention services, the numbers of such
infants and toddlers and their families served, the types of services,
and other information required to evaluate the implementation of early
intervention programs.
(4) Resolve disputes among the DoD Components arising under
appendix A of this part.
(c) Secretaries of the Military Departments shall:
(1) Provide quality assurance for medically related services in
accordance with personnel standards and staffing standards under DoD
Directive 6025.13\5\ developed by the Assistant Secretary of Defense
for Health Affairs (ASD(HA)).
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\5\See footnote 1 to Sec. 80.1(c).
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(2) Plan, develop, and implement a comprehensive, coordinated,
intercomponent, community-based system of early intervention services
for infants and toddlers with disabilities (birth through 2 inclusive)
and their families who are living on an installation with a Section 6
School Arrangement, or who but for their age, would be entitled to
enroll in a Section 6 School Arrangement, using the procedures
established by this part and guidelines from the ASD(HA) on staffing
and personnel standards.
(3) Undertake activities to ensure compliance with this part
through technical assistance, program evaluation, and monitoring.
(d) The Director, Defense Office of Hearings and Appeals (DOHA)
shall ensure the provision of impartial due process hearings under
appendix C of this part.
Sec. 80.6 Procedures.
(a) Procedures for the provision of early intervention services for
infants and toddlers with disabilities and their families are in
appendix A to this part. Provision of early intervention services
includes establishing a system of coordinated, comprehensive,
multidisciplinary, intercomponent services providing appropriate early
intervention services to all eligible infants and toddlers with
disabilities and their families.
(b) Procedures for special educational programs (including related
services) for preschool children and children with disabilities (3-21
years inclusive) are in appendix B to this part.
(c) Procedures for adjudicative requirements required by Pub. L.
101-476, as amended, and Pub. L. 102-119 are in appendix C to this
part. These procedures establish adjudicative requirements whereby the
parents of an infant, toddler, preschool child or child with a
disability and the military department concerned or Section 6 School
System are afforded an impartial due process hearing on early
intervention services or on the identification, evaluation, and
educational placement of, and the free appropriate public education
provided to, such infant, toddler, preschool child or child, as the
case may be.
Appendix A to Part 80--Procedures For The Provision of Early
Intervention Services for Infants And Toddlers With Disabilities, Ages
0-2 years (Inclusive), And Their Families
A. Requirements For A System of Early Intervention Services
1. A system of coordinated, comprehensive, multidisciplinary,
and intercomponent programs providing appropriate early intervention
services to all infants and toddlers with disabilities and their
families shall include the following minimum components:
a. A timely, comprehensive, multidisciplinary evaluation of the
functioning of each infant and toddler with a disability and the
priorities and concerns of the infant's or toddler's family to
assist in the development of the infant or toddler with a
disability.
b. A mechanism to develop, for each infant and toddler with a
disability, an IFSP and early intervention services coordination, in
accordance with such service plan.
c. A comprehensive child-find system, coordinated with the
appropriate Section 6 School Arrangement, including a system for
making referrals to service providers that includes timelines and
provides for participation by primary referral sources, such as the
CDC and the pediatric clinic.
d. A public awareness program including information on early
identification of infants and toddlers with disabilities and the
availability of resources in the community to address and remediate
these disabilities.
e. A central directory that includes a description of the early
intervention services and other relevant resources available in the
community.
B. Each Military Medical Department Shall Develop and Implement a
System to Provide for:
1. The administration and supervision of early intervention
programs and services, including the identification and coordination
of all available resources.
2. The development of procedures to ensure that services are
provided to infants and toddlers with disabilities and their
families in a timely manner.
3. The execution of agreements with other DoD components
necessary for the implementation of this appendix. Such agreements
must be coordinated with the ASD(HA) and the GC, DoD, in
consultation with the USD(P&R).
4. The collection and reporting of data required by ASD(HA).
5. A multidisciplinary assessment of the unique strengths and
needs of the infant or toddler and the identification of services
appropriate to meet such needs.
6. A family-directed assessment of the resources, priorities,
and concerns of the family and the identification of the supports
and services necessary to enhance the family's capacity to meet the
developmental needs of its infant or toddler with a disability.
C. Each Military Medical Department Shall Develop and Implement a
Program to Ensure That an IFSP is Developed for Each Infant or
Toddler With a Disability and the Infant's or Toddler's Family
According to the Following Procedures:
1. The IFSP shall be evaluated once a year and the family shall
be provided a review of the plan at 6-month intervals (or more often
where appropriate), based on the needs of the infant or toddler and
family.
2. Each initial meeting and each annual meeting to evaluate the
IFSP must include the following participants:
a. The parent or parents of the infant or toddler.
b. Other family members, as requested by a parent, if feasible
to do so.
c. An advocate, if his or her participation is requested by a
parent.
d. The Early Intervention Program Services Coordinator who has
been working with the family since the initial referral of the
infant or toddler or who has been designated as responsible for the
implementation of the IFSP.
e. A person or persons directly involved in conducting the
evaluation and assessments.
f. Persons who will be providing services to the infant,
toddler, or family, as appropriate.
g. If a person or persons listed in paragraph C.2 of this
section is unable to attend a meeting, arrangements must be made for
involvement through other means, including:
(1) Participating in a telephone call.
(2) Having a knowledgeable authorized representative attend the
meeting.
(3) Making pertinent records available at the meeting.
3. The IFSP shall be developed within a reasonable time after
the assessment. With the parent's consent, early intervention
services may start before the completion of such an assessment under
an IFSP.
4. The IFSP shall be in writing and contain:
a. A statement of the infant's or toddler's present levels of
physical development, cognitive development, communication
development, social or emotional development, and adaptive
development, based on acceptable objective criteria.
b. A statement of the family's resources, priorities, and
concerns for enhancing the development of the family's infant or
toddler with a disability.
c. A statement of the major outcomes expected to be achieved for
the infant or toddler and the family, and the criteria, procedures,
and timelines used to determine the degree to which progress toward
achieving the outcomes is being made and whether modifications or
revisions of the outcomes or services are necessary.
d. A statement of the specific early intervention services
necessary to meet the unique needs of the infant or toddler and the
family, including the frequency, intensity, and the method of
delivering services.
e. A statement of the natural environments in which early
intervention services shall be provided.
f. The projected dates for initiation of services and the
anticipated duration of such services.
g. The name of the Early Intervention Program Service
Coordinator.
h. The steps to be taken supporting the transition of the
toddler with a disability to preschool services or other services to
the extent such services are considered appropriate.
5. The contents of the IFSP shall be fully explained to the
parents by the Early Intervention Program Service Coordinator, and
informed written consent from such parents shall be obtained before
the provision of early intervention services described in such plan.
If the parents do not provide such consent with respect to a
particular early intervention service, then the early intervention
services to which such consent is obtained shall be provided.
D. Procedural Safeguards for the Early Intervention Program
1. The procedural safeguards include:
a. The timely administrative resolution of complaints by the
parent(s), including hearing procedures (appendix C to this part).
b. The right to protection of personally identifiable
information under 32 CFR part 310.
c. The right of the parent(s) to determine whether they, their
infant or toddler, or other family members will accept or decline
any early intervention service without jeopardizing the delivery of
other early intervention services to which such consent is obtained.
d. The opportunity for the parent(s) to examine records on
assessment, screening, eligibility determinations, and the
development and implementation of the IFSP.
e. Written prior notice to the parent(s) of the infant or
toddler with a disability whenever the Military Department concerned
proposes to initiate or change or refuses to initiate or change the
identification, evaluation, placement, or the provision of
appropriate early intervention services to the infant and toddler
with a disability.
f. Procedures designed to ensure that the notice required in
paragraph D.1.e. of this appendix fully informs the parents in the
parents' native language, unless it clearly is not feasible to do
so.
g. During the pending of any proceeding under appendix C to this
part, unless the Military Department concerned and the parent(s)
otherwise agree, the infant or toddler shall continue to receive the
early intervention services currently being provided, or, if
applying for initial services, shall receive the services not in
dispute.
Appendix B to Part 80--Procedures for Special Educational Programs
(Including Related Services) for Preschool Children and Children with
Disabilities (3-21 years Inclusive)
A. Identification and Screening
1. Each Section 6 School Arrangement shall locate, identify,
and, with the consent of a parent of each preschool child or child,
evaluate all preschool children or children who are receiving or are
entitled to receive an education from Section 6 School Arrangements
and who may need special education and/or related services.
2. Each Section 6 School Arrangement shall:
a. Provide screening, through the review of incoming records and
the use of basic skills tests in reading, language arts, and
mathematics, to determine whether a preschool child or child may be
in need of special education and related services.
b. Analyze school health data for those preschool children and
children who demonstrate possible disabling conditions. Such data
shall include:
(1) Results of formal hearing, vision, speech, and language
tests.
(2) Reports from medical practitioners.
(3) Reports from other appropriate professional health personnel
as may be necessary, under this part, to aid in identifying possible
disabling conditions.
c. Analyze other pertinent information, including suspensions,
exclusions, other disciplinary actions, and withdrawals, compiled
and maintained by Section 6 School Arrangements that may aid in
identifying possible disabling conditions.
3. Each Section 6 School Arrangement, in cooperation with
cognizant authorities at the installation on which the Section 6
School Arrangement is located, shall conduct ongoing child-find
activities that are designed to identify all infants, toddlers,
preschool children, and children with possible disabling conditions
who reside on the installation or who otherwise either are entitled,
or will be entitled, to receive services under this part.
a. If an element of the Section 6 School Arrangement, a
qualified professional authorized to provide related services, a
parent, or other individual believes that an infant, toddler,
preschool child or child has a possible disabling condition, that
individual shall be referred to the appropriate CSC or early
intervention coordinator.
b. A Section 6 School Arrangement CSC shall work in cooperation
with the Military Departments in identifying infants, toddlers,
preschool children and children with disabilities (birth to 21 years
inclusive).
3B. Evaluation Procedures
1. Each CSC will provide a full and comprehensive diagnostic
evaluation of special educational, and related service needs to any
preschool child or child who is receiving, or entitled to receive,
educational instruction from a Section 6 School Arrangement,
operated by the Department of Defense under Directive 1342.21, and
who is referred to a CSC for a possible disability. The evaluation
will be conducted before any action is taken on the development of
the IEP or placement in a special education program.
2. Assessment materials, evaluation procedures, and tests shall
be:
a. Racially and culturally nondiscriminatory.
b. Administered in the native language or mode of communication
of the preschool child or child unless it clearly is not feasible to
do so.
c. Validated for the specific purpose for which they are used or
intended to be used.
d. Administered by qualified personnel, such as a special
educator, school psychologist, speech therapist, or a reading
specialist, in conformity with the instructions provided by the
producers of the testing device.
e. Administered in a manner so that no single procedure is the
sole criterion for determining eligibility and an appropriate
educational program for a disabled preschool child or child.
f. selected to assess specific areas of educational strengths
and needs, not merely to provide a single general intelligence
quotient.
3. The evaluation shall be conducted by a multidisciplinary team
and shall include a teacher or other specialist with knowledge in
the areas of the suspected disability.
4. The preschool child or child shall be evaluated in all areas
related to the suspected disability. When necessary, the evaluation
shall include:
a. The current level of academic functioning, to include general
intelligence.
b. Visual and auditory acuity.
c. Social and emotional status, to include social functioning
within the educational environment and within the family.
d. Current physical status, including perceptual and motor
abilities.
e. Vocational transitional assessment (for children ages 14-21
years (inclusive)).
5. The appropriate CSC shall met as soon as possible after the
preschool child's or child's formal evaluation to determine whether
he or she is in need of special education and related services. The
preschool child's or child's parents shall be invited to the meeting
and afforded the opportunity to participate in such a meeting.
6. The school CSC shall issue a written report that contains:
a. A review of the formal and informal diagnostic evaluation
findings of the multidisciplinary team.
b. A summary of information from the parents, the preschool
child or child, or other persons having significant previous contact
with the preschool child or child.
c. A description of the preschool child's or child's current
academic progress, including a statement of his or her learning
style.
d. A description of the nature and severity of the preschool
child's or child's disability(ies).
7. A preschool child or child with a disability shall receive an
individual comprehensive diagnostic evaluation every 3 years, or
more frequently if conditions warrant, or if the preschool child's
or child's parent, teacher, or related service provider requests an
evaluation. The scope and nature of the reevaluation shall be
determined individually, based upon the preschool child's or child's
performance, behavior, and needs when the reevaluation is conducted,
and be used to update or revise the IEP.
C. Individualized Education Program (IEP)
1. Section 6 School Arrangements shall ensure that an IEP is
developed and implemented for each preschool child or child with a
disability enrolled in a Section 6 School Arrangement or placed on
another institution by a Section 6 School Arrangement CSC under this
part.
2. Each IEP shall include:
a. A statement of the preschool child's or child's present
levels of educational performance.
b. A statement of annual goals, including short-term
instructional objectives.
c. A statement of the specific special educational services and
related services to be provided to the preschool child or child
(including the frequency, number of times per week/month and
intensity, amount of times each day) and the extent to which the
preschool child or child may be able to participate in regular
educational programs.
d. The projected anticipated date for the initiation and the
anticipated length of such activities and services.
e. Appropriate objective criteria and evaluation procedures and
schedules for determining, on an annual basis, whether educational
goals and objectives are being achieved.
f. A statement of the needed transition services for the child
beginning no later than age 16 and annually thereafter (and when
determined appropriate for the child, beginning at age 14 or
younger) including, when appropriate, a statement of DoD Component
responsibilities before the child leaves the school setting.
3. Each preschool child or child with a disability shall be
provided the opportunity to participate, with adaptations when
appropriate, in the regular physical education program available to
students without disabilities unless:
a. The preschool child or child with a disability is enrolled
full-time in a separate facility; or
b. The preschool child or child with a disability needs
specially designed physical education, as prescribed in his or her
IEP.
4. If specially designed physical education services are
prescribed in the IEP of a preschool child or child with a
disability, the Section 6 School Arrangement shall provide such
education directly, or shall make arrangements for the services to
be provided through a non-Section 6 School Arrangement or another
facility.
5. Section 6 School Arrangements shall ensure that a preschool
child or child with a disability, enrolled by a CSC in a separate
facility, receives appropriate, physical education in compliance
with this part.
6. The IEP for each preschool child or child with a disability
shall be developed and reviewed at least annually in meetings that
include the following participants:
a. The designated representative of the Section 6 School
Arrangement, who is qualified to supervise the provision of special
education. Such representative may not be the preschool child's or
child's special education teacher.
b. One, or more, of the preschool child's or child's regular
education teachers, if appropriate.
c. The preschool child's or child's special education teacher or
teachers.
d. One, or both, of the preschool child's or child's parents.
e. The child, if appropriate.
f. For a preschool child or child with a disability who has been
evaluated, a member of the evaluation team or another person
knowledgeable about the evaluation procedures used with that student
and familiar with the results of the evaluation.
g. Other individuals, at the reasonable discretion of the
parent(s) or the school.
7. Section 6 School Arrangements shall:
2a. Ensure that an IEP meeting is held, normally within 10
working days, following a determination by the appropriate CSC that
the preschool child or child is eligible to receive special
education and/or related services.
b. Address the needs of a preschool child or child with a
current IEP who transfers from a school operated by the DoD in
accordance with 32 CFR part\1\ or from a Section 6 School
Arrangement to a Section 6 School Arrangement, by:
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\1\Copies of DoD Directive 1342.6 may be obtained, at cost, from
the National Technical Information Service, 5285 Port Royal Road,
Springfield, VA 22161.
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(1)Implementing the current IEP; or
(2) Revising the current IEP with the consent of a parent; or
(3) Initiating, with the consent of a parent, an evaluation of
the preschool child or child, while continuing to provide
appropriate services through a current IEP; or
(4) Initiating, with the consent of the parent, an evaluation of
the preschool child or child without the provision of the services
in the current IEP; or
(5) Initiating mediation, and if necessary, due process
procedures.
c. Afford the preschool child's or child's parent(s) the
opportunity to participate in every IEP or CSC meeting about their
preschool child or child by:
(1) Providing the parent(s) adequate written notice of the
purpose, time, and place of the meeting.
(2) Attempting to schedule the meeting at a mutually agreeable
time and place.
8. If neither parent can attend the meeting, other methods to
promote participation by a parent, such as telephone conservations
and letters, shall be used.
9. A meeting may be conducted without a parent in attendance if
the Section 6 School Arrangement is unable to secure the attendance
of the parent. In this case, the Section 6 School Arrangement must
have written records of its attempts to arrange a mutually
acceptable time and place.
10. If the parent(s) attends the IEP meeting, the Section 6
School Arrangement shall take necessary action to ensure that at
least one of the parents understands the proceedings at the meeting,
including providing an interpreter for a parent who is deaf or whose
native language is other than English.
11. The section 6 School Arrangement shall give a parent a copy
of the preschool child's IEP.
12. Section 6 School Arrangements shall provide special
education and related services, in accordance with an IEP, provided
that the Department of Defense, its constituent elements, and its
personnel, are not accountable if a preschool child or child does
not achieve the growth projected in the IEP.
13. Section 6 School Arrangements shall ensure that an IEP is
developed and implemented for each preschool child or child with a
disability whom the CSC places in a non-Section 6 School or other
facility.
D. Placement Procedures and Least Restrictive Environment
1. The placement of a preschool child or child in any special
education program by the Section 6 School Arrangement shall be made
only under an IEP and after a determination has been made that such
student has a disability and needs special education and/or related
services.
2. The Section 6 School Arrangement CSC shall identify the
special education and related services to be provided under the IEP.
3. A placement decision may not be implemented without the
consent of a parent of the preschool child or child, except as
otherwise provided in accordance with this part.
4. The placement decision must be designed to educate a
preschool child or child with a disability in the least restrictive
environment so that such student is educated to the maximum extent
appropriate with students who do not have disabilities. Special
classes, separate schooling, or other removal of preschool children
or children with disabilities from the regular educational
environment shall occur only when the nature or severity of the
disability is such that the preschool child or child with
disabilities cannot be educated satisfactorily in the regular
classes with the use of supplementary aids and services, including
related services.
5. Each educational placement for a preschool child or child
with a disability shall be:
a. Determined at least annually by the appropriate CSC.
b. Based on the preschool child or child's IEP.
c. Located as close as possible to the residence of the parent
who is sponsoring the preschool child or child for attendance in a
Section 6 School Arrangement.
d. Designed to assign the preschool child or child to the school
such student would attend if he or she were not a student with a
disability, unless the IEP requires some other arrangement.
e. Predicated on the consideration of all factors affecting the
preschool child's or child's well-being, including the effects of
separation from parent(s).
f. To the maximum extent appropriate, designed so that the
preschool child or child participates in school activities,
including meals and recess periods, with students who do not have a
disability.
E. Children With Disabilities Placed in Non-Section 6 School
Arrangements
1. Before a Section 6 School Arrangement CSC, with the
concurrence of the Section 6 School Arrangement Superintendent
concerned, places a preschool child or child with a disability in a
non-Section 6 School or facility, the Section 6 School CSC shall
conduct a meeting in accordance with this part to initiate the
development of an IEP for such student.
2. Preschool children and children with disabilities eligible to
receive instruction in Section 6 School Arrangements who are
referred to another school or facility by the Section 6 School CSC
have all the rights of students with disabilities who are attending
the Section 6 School Arrangement.
a. If a Section 6 School Arrangement CSC places a preschool
child or child with a disability in a non-Section 6 School
Arrangement or facility as a means of providing special education
and related services, the program of that facility, including
nonmedical care, room, and board, as set forth in the student's IEP,
must be at no cost to the student or the student's parents.
b. A Section 6 School Arrangement CSC may place a preschool
child or child with a disability in a non-Section 6 School
Arrangement or facility only if required by an IEP. An IEP for a
student placed in a non-Section 6 School is not valid until signed
by the Section 6 School Arrangement Superintendent, or designee, who
must have participated in the IEP meeting. The IEP shall include
determinations that:
(1) The Section 6 School Arrangement does not currently have,
and cannot reasonably create, an educational program appropriate to
meet the needs of the student with a disability.
(2) The non-Section 6 School Arrangement or facility and its
educational program conform to this part.
3. A Section 6 School Arrangement is not responsible for the
cost of a non-Section 6 School Arrangement placement when placement
is made unilaterally, without the approval of the cognizant CSC and
the Superintendent, unless it is directed by a hearing officer under
appendix C of this part or a court of competent jurisdiction.
F. Procedural Safeguards
1. Parents shall be given written notice before the Section 6
School Arrangement CSC proposes to initiate or change, or refuses to
initiate or change, either the identification, evaluation, or
educational placement of a preschool child or child receiving, or
entitled to receive, special education and related services from a
Section 6 School Arrangement, or the provision of a free appropriate
public education by the Section 6 School Arrangement to the child.
The notice shall fully inform a parent of the procedural rights
conferred by this part and shall be given in the parent's native
language, unless it clearly is not feasible to do so.
2. The consent of a parent of a preschool child or child with a
disability or suspected of having a disability shall be obtained
before any:
a. Initiation of formal evaluation procedures;
b. Initial special educational placement; or
c. Change in educational placement.
3. If a parent refuses consent to any formal evaluation or
initial placement in a special education program, the Section 6
School Arrangement Superintendent may initiate an impartial due
process hearing, as provided in appendix C of this part to show why
an evaluation or placement in a special education program should
occur without such consent. If the hearing officer sustains the
Section 6 School Arrangement CSC position in the impartial due
process hearing, the appropriate CSC may evaluate or provide special
education and related services to the preschool child or child
without the consent of a parent, subject to the parent's due process
rights.
4. A parent is entitled to an independent evaluation of his or
her preschool child or child at the Section 6 School Arrangement's
expense, if the parent disagrees with the findings of an evaluation
of the student conducted by the school and the parent successfully
challenges the evaluation in an impartial due process hearing.
a. If an independent evaluation is provided at the expense of a
Section 6 School Arrangement, it must meet the following criteria:
(1) Conform to the requirements of this part.
(2) Be conducted, when possible, within the area where the
preschool child or child resides.
(3) Meet applicable DoD standards governing persons qualified to
conduct an evaluation.
b. If the final decision rendered in an impartial due process
hearing sustains the evaluation of the Section 6 School Arrangement
CSC, the parent has the right to an independent evaluation, but not
at the expense of the Department of Defense or any DoD Component.
5. The parents of a preschool child or child with a disability
shall be afforded an opportunity to inspect and review all relevant
educational records concerning the identification, evaluation, and
educational placement of such student, and the provision of a free
appropriate public education to him or her.
6. Upon complaint presented in a written petition, the parent of
a preschool child or child with a disability or the Section 6 School
System shall have the opportunity for an impartial due process
hearing provided by the Department of Defense as prescribed by
appendix C of this part.
7. During the pendency of any impartial due process hearing or
judicial proceeding on the identification, evaluation, or
educational placement of a preschool child or child with a
disability receiving an education from a Section 6 School
Arrangement or the provision of a free appropriate public education
to such a student, unless the Section 6 School Arrangement and a
parent of the student agree otherwise, the student shall remain in
his or her present educational placement, subject to the
disciplinary procedures prescribed in this part.
8. If a preschool child or child with a disability, without a
current IEP, who is entitled to receive educational instruction from
a Section 6 School Arrangement is applying for initial admission to
a Section 6 School Arrangement, that student shall enter that
Arrangement on the same basis as a student without a disability.
9. The parent of a preschool child or child with a disability or
a Section 6 School Arrangement employee may file a written
communication with the Section 6 School Arrangement Superintendent
about possible general violations of this part or Pub. L. 101-476,
as amended. Such communications will not be treated as complaints
under appendix C of this part.
G. Disciplinary Procedures
1. All regular disciplinary rules and procedures applicable to
students receiving educational instruction in the Section 6 School
Arrangements shall apply to preschool children and children with
disabilities who violate school rules and regulations or disrupt
regular classroom activities, subject to the provisions of this
section.
2. The appropriate CSC shall determine whether the conduct of a
preschool child or child with a disability is the result of that
disability before the long-term suspension (10 consecutive or
cumulative days during the school year) or the expulsion of that
student.
3. If the CSC determines that the conduct of such a preschool
child or child with a disability results in whole or part from his
or her disability, that student may not be subject to any regular
disciplinary rules and procedures; and
a. The student's parent shall be notified in accordance with
this part of the right to have an IEP meeting before any change in
the student's special education placement. (A termination of the
student's education for more than 10 days, either cumulative or
consecutive, constitutes a change of placement.)
b. The Section 6 School Arrangement CSC or another authorized
school official shall ensure that an IEP meeting is held to
determine the appropriate educational placement for the student in
consideration of his or her conduct before the tenth cumulative day
of the student's suspension or an expulsion.
4. A preschool child or child with a disability shall neither be
suspended for more than 10 days nor expelled, and his or her
educational placement shall not otherwise be changed for
disciplinary reasons, unless in accordance with this section, except
that:
a. This section shall be applicable only to preschool children
and children determined to have a disability under this part.
b. Nothing contained herein shall prevent the emergency
suspension of any preschool child or child with a disability who
endangers or reasonable appears to endanger the health, welfare, or
safety of himself or herself, or any other student, teacher, or
school personnel, provided that:
(1) The appropriate Section 6 School Arrangement CSC shall
immediately meet to determine whether the preschool child's or
child's conduct results from his or her disability and what change
in special education placement is appropriate for that student.
(2) The child's parent(s) shall be notified immediately of the
student's suspension and of the time, purpose, and location of the
CSC meeting and their right to attend the meeting.
(3) A component is included in the IEP that addresses the
behavioral needs of the student.
(4) The suspension of the student is only effective for the
duration of the emergency.
Appendix C to Part 80--Hearing Procedures
A. Purpose
This appendix establishes adjudicative requirements whereby the
parents of infants, toddlers, preschool children, and children who
are covered by this part and, as the case may be, the cognizant
Military Department or Section 6 School System are afforded
impartial due process hearings and administrative appeals on the
early intervention services or identification, evaluation, and
educational placement of, and the free appropriate public education
provided to, such children by the Department of Defense, in
accordance with Pub. L. 101-476, as amended, 20 U.S.C. sec. 1401 et
seq.; Pub. L. 81-874, sec. 6, as amended, 20 U.S.C. sec. 241; Pub.
L. 97-35, sec. 505(c), 20 U.S.C. sec. 241 note; and Pub. L. 102-119,
sec. 23, 20 U.S.C. sec. 241(a).
B. Administration
1. The Directorate for the Defense Office of Hearings and
Appeals (DOHA) shall have administrative responsibility for the
proceedings authorized by this appendix.
2. This appendix shall be administered to ensure that the
findings, judgments, and determinations made are prompt, fair, and
impartial.
3. Impartial hearing officers, who shall be DOHA Administrative
Judges, shall be appointed by the Director, DOHA, and shall be
attorneys who are independent of the Section 6 School System or the
Military Department concerned in proceedings conducted under this
appendix. A parent shall have the right to be represented in such
proceedings, at no cost to the government, by counsel and by persons
with special knowledge or training with respect to the problems of
individuals with disabilities. DOHA Department Counsel normally
shall appear and represent the Section 6 School System in
proceedings conducted under this appendix, when such proceedings
involve a preschool child or child. When an infant or toddler is
involved, the Military Department responsible under this part for
delivering early intervention services shall either provide its own
counsel or request counsel from DOHA.
C. Mediation
1. Mediation can be initiated by either a parent or, as
appropriate, the Military Department concerned or the Section 6
School System to resolve informally a disagreement on the early
intervention services for an infant or toddler or the
identification, evaluation, educational placement of, or the free
appropriate public education provided to, a preschool child or
child. The cognizant Military Department, rather than the Section 6
School System, shall participate in mediation involving early
intervention services. Mediation shall consist of, but not be
limited to, an informal discussion of the differences between the
parties in an effort to resolve those differences. The parents and
the appropriate school or Military Department officials may attend
mediation sessions.
2. Mediation must be conducted, attempted, or refused in writing
by a parent of the infant, toddler, preschool child or child whose
early intervention or special education services (including related
services) are at issue before a request for, or initiation of, a
hearing authorized by this appendix. Any request by the Section 6
School System or Military Department for a hearing under this
appendix shall state how this requirement has been satisfied. No
stigma may be attached to the refusal of a parent to mediate or to
an unsuccessful attempt to mediate.
D. Practice and Procedure
1. Hearing
a. Should mediation be refused or otherwise fail to resolve the
issues on the provision of early intervention services or a free,
appropriate public education to a disabled infant, toddler,
preschool child or child or the identification, evaluation, or
educational placement of such an individual, the parent or either
the school principal, on behalf of the Section 6 School System, or
the military medical treatment facility commander, on behalf of the
Military Department having jurisdiction over the infant or toddler,
may request and shall receive a hearing before a hearing officer to
resolve the matter. The parents of an infant, toddler, preschool
child or child and the Section 6 School System or Military
Department concerned shall be the only parties to a hearing
conducted under this appendix.
b. The party seeking the hearing shall submit a written request,
in the form of a petition, setting forth the facts, issues, and
proposed relief, to the Director, DOHA. The petitioner shall deliver
a copy of the petition to the opposing party (that is, the parent or
the school principal, on behalf of the Section 6 School System, or
the military medical treatment facility commander, on behalf of the
Military Department), either in person or by first-class mail,
postage prepaid. Delivery is complete upon mailing. When the Section
6 School System or Military Department petitions for a hearing, it
shall inform the other parties of the deadline for filing an answer
under paragraph D.1.c. of this appendix, and shall provide the other
parties with a copy of this part.
c. An opposing party shall submit an answer to the petition to
the Director, DOHA, with a copy to the petitioner, within 15
calendar days of receipt of the petition. The answer shall be as
full and complete as possible, addressing the issues, facts, and
proposed relief. The submission of the answer is complete upon
mailing.
d. Within 10 calendar days after receiving the petition, the
Director, DOHA, shall assign a hearing officer, who then shall have
jurisdiction over the resulting proceedings. The Director, DOHA,
shall forward all pleadings to the hearing officer.
e. The questions for adjudication shall be based on the petition
and the answer, provided that a party may amend a pleading if the
amendment is filed with the hearing officer and is received by the
other parties at least 5 calendar days before the hearing.
f. The Director, DOHA, shall arrange for the time and place of
the hearing, and shall provide administrative support. Such
arrangements shall be reasonably convenient to the parties.
g. The purpose of a hearing is to establish the relevant facts
necessary for the hearing officer to reach a fair and impartial
determination of the case. Oral and documentary evidence that is
relevant and material may be received. The technical rules of
evidence shall be relaxed to permit the development of a full
evidentiary record, with the Federal Rules of Evidence (28 U.S.C.)
serving as a guide.
h. The hearing officer shall be the presiding officer, with
judicial powers to manage the proceeding and conduct the hearing.
Those powers shall include the authority to order an independent
evaluation of the child at the expense of the Section 6 School
System or Military Department concerned and to call and question
witnesses.
i. Those normally authorized to attend a hearing shall be the
parents of the individual with disabilities, the counsel and
personal representative of the parents, the counsel and professional
employees of the Section 6 School System or Military Department
concerned, the hearing officer, and a person qualified to transcribe
or record the proceedings. The hearing officer may permit other
persons to attend the hearing, consistent with the privacy interests
of the parents and the individual with disabilities, provided the
parents have the right to an open hearing upon waiving in writing
their privacy rights and those of the individual with disabilities.
j. A verbatim transcription of the hearing shall be made in
written or electronic form and shall become a permanent part of the
record. A copy of the written transcript or electronic record of the
hearing shall be made available to a parent upon request and without
cost. The hearing officer may allow corrections to the written
transcript or electronic recording for the purpose of conforming it
to actual testimony after adequate notice of such changes is given
to all parties.
k. The hearing officer's decision of the case shall be based on
the record, which shall include the petition, the answer, the
written transcript or the electronic recording of the hearing,
exhibits admitted into evidence, pleadings or correspondence
properly filed and served on all parties, and such other matters as
the hearing officer may include in the record, provided that such
matter is made available to all parties before the record is closed
under paragraph D.1.m. of this appendix.
l. The hearing officer shall make a full and complete record of
a case presented for adjudication.
m. The hearing officer shall decide when the record in a case is
closed.
n. The hearing officer shall issue findings of fact and render a
decision in a case not later than 50 calendar days after being
assigned to the case, unless a discovery request under section D.2.
of this appendix is pending.
2. Discovery
a. Full and complete discovery shall be available to parties to
the proceeding, with the Federal Rules of Civil Procedure (28
U.S.C.) serving as a guide.
b. If voluntary discovery cannot be accomplished, a party
seeking discovery may file a motion to accomplish discovery,
provided such motion is founded on the relevance and materiality of
the proposed discovery to the issues. An order granting discovery
shall be enforceable as is an order compelling testimony or the
production of evidence.
c. A copy of the written or electronic transcription of a
deposition taken by the Section 6 School System or Military
Department concerned shall be made available free of charge to a
parent.
3. Witnesses; Production of Evidence
a. All witnesses testifying at the hearing shall be advised that
it is a criminal offense knowingly and willfully to make a false
statement or representation to a Department or Agency of the United
States Government as to any matter within the jurisdiction of the
Department or Agency. All witnesses shall be subject to cross-
examination by the parties.
b. A party calling a witness shall bear the witness' travel and
incidental expenses associated with testifying at the hearing. The
Section 6 School System or Military Department concerned shall pay
such expenses when a witness is called by the hearing officer.
c. The hearing officer may issue an order compelling the
attendance of witnesses or the production of evidence upon the
hearing officer's own motion or, if good cause be shown, upon motion
of a party.
d. When the hearing officer determines that a person has failed
to obey an order to testify or to produce evidence, and such failure
is in knowing and willful disregard of the order, the hearing
officer shall so certify.
e. The party or the hearing officer seeking to compel testimony
or the production of evidence may, upon the certification provided
for in paragraph D.3.d. of the section, file an appropriate action
in a court of competent jurisdiction to compel compliance with the
hearing officer's order.
4. Hearing Officer's Findings of Fact and Decision
a. The hearing officer shall make written findings of fact and
shall issue a decision setting forth the questions presented, the
resolution of those questions, and the rationale for the resolution.
The hearing officer shall file the findings of fact and decision
with the Director, DOHA, with a copy to the parties.
b. The Director, DOHA, shall forward to the Director, Section 6
Schools or the Military Department concerned and the Domestic
Advisory Panel copies, with all personally identifiable information
deleted, of the hearing officer's findings of fact and decision or,
in cases that are administratively appealed, of the final decision
of the DOHA Appeal Board.
c. The hearing officer shall have the authority to impose
financial responsibility for early intervention services,
educational placements, evaluations, and related services under his
or her findings of fact and decision.
d. The findings of fact and decision of the hearing officer
shall become final unless a notice of appeal is filed under section
F.1. of this appendix. The Section 6 School System or Military
Department concerned shall implement a decision as soon as
practicable after it becomes final.
E. Determination Without Hearing
1. At the request of a parent of the infant, toddler, preschool
child or child when early intervention or special educational
(including related) services are at issue, the requirement for a
hearing may be waived, and the case may be submitted to the hearing
officer on written documents filed by the parties. The hearing
officer shall make findings of fact and issue a decision within the
period fixed by paragraph D.1.n. of this appendix.
2. The Section 6 School System or Military Department concerned
may oppose a request to waive the hearing. In that event, the
hearing officer shall rule on the request.
3. Documents submitted to the hearing officer in a case
determined without a hearing shall comply with paragraph D.1.g. of
this appendix. A party submitting such documents shall provide
copies to all other parties.
F. Appeal
1. A party may appeal the hearing officer's findings of fact and
decision by filing a written notice of appeal with the Director,
DOHA, within 5 calendar days of receipt of the findings of fact and
decision. The notice of appeal must contain the appellant's
certification that a copy of the notice of appeal has been provided
to all other parties. Filing is complete upon mailing.
2. Within 10 calendar days of the filing the notice of appeal,
the appellant shall submit a written statement of issues and
arguments to the Director, DOHA, with a copy to the other parties.
The other parties shall submit a reply or replies to the Director,
DOHA, within 15 calendar days of receiving the statement, and shall
deliver a copy of each reply to the appellant. Submission is
complete upon mailing.
3. The Director, DOHA, shall refer the matter on appeal to the
DOHA Appeal Board. It shall determine the matter, including the
making of interlocutory rulings, within 60 calendar days of
receiving timely submitted replies under section F.2. of this
appendix. The DOHA Appeal Board may require oral argument at a time
and place reasonable convenient to the parties.
4. The determination of the DOHA Appeal Board shall be a final
administrative decision and shall be in written form. It shall
address the issues presented and set forth a rationale for the
decision reached. A determination denying the appeal of a parent in
whole or in part shall state that the parent has the right under
Pub. L. 101-476, as amended, to bring a civil action on the matters
in dispute in a district court of the United States without regard
to the amount in controversy.
5. No provision of this part or other DoD guidance may be
construed as conferring a further right of administrative review. A
party must exhaust all administrative remedies afforded by this
appendix before seeking judicial review of a determination made
under this appendix.
G. Publication and Indexing of Final Decisions
The Director, DOHA, shall ensure that final decisions in cases
arising under this Appendix are published and indexed to protect the
privacy rights of the parents who are parties in those cases and the
children of such parents, in accordance with 32 CFR part 310.
Dated: July 19, 1994.
L.M. Bynum,
Alternate OSD Federal Register, Liaison Officer, Department of Defense.
[FR Doc. 94-17937 Filed 7-22-94; 8:45 am]
BILLING CODE 5000-04-M
